Delay Discharge for Mortgage Reaffirmation?

Anonymous · ‎07-31-2015

I received my BK7 discharge on July 21. I planned to reaffirm my mortgage. After calling my lawyer to be sure my mortgage was reaffirmed, I found out it was not completed in time. My lawyer wants to petition the courts to delay my discharge to complete my reaffirmation agreement. Is this possible since my discharge letter was sent to myself and my mortgage company?

Also, after calling my mortgage company, I was told that they have received my discharge letter and that my reaffirmation has been closed.

StartingOver10 · ‎08-01-2015

@Anonymous wrote:
I received my BK7 discharge on July 21. I planned to reaffirm my mortgage. After calling my lawyer to be sure my mortgage was reaffirmed, I found out it was not completed in time. My lawyer wants to petition the courts to delay my discharge to complete my reaffirmation agreement. Is this possible since my discharge letter was sent to myself and my mortgage company?

Also, after calling my mortgage company, I was told that they have received my discharge letter and that my reaffirmation has been closed.

You are in much better position now that you have been discharged without the reaffirmation. As long as you continue to make your mortgage payments on time the lender can not foreclose. If you read through the threads you will see others that kept their home without reaffirming the mortgage. You just need to make sure you pay timely each month.

I don't see how in the world your attorney can make the trustee pull back the discharge. It doesn't make any sense to me - it sounds like s/he was just trying to placate you IMO.

despritfreya · ‎08-01-2015

Please review this before doing something you may regret down the road. . .

http://www.bkforum.com/forum/before-the-discharge/chapter-7/64385-why-reaffirming-a-mortgage-is-a-ve...

Since you failed to indicate what state you live in there is no way to know if your state law protects you should you default down the road after reaffirming.

And. . . filing a "Motion to Set Aside the Entry of the Discharge Order for the Limited Purpose of Submitting a Reaffirmation Agreement" makes little sense if you have the best of both worlds without it. . . IMHO

Des.

Anonymous · ‎08-01-2015

I live in the state of Ohio. I basically wanted to reaffirm to be sure I didn't have issues with refinancing/selling the home in the future. I really have no equity in the home, but my payments are paid on time in full every month.

despritfreya · ‎08-01-2015

IMHO it would have been malpractice for your attny to have allowed you to reaffirm. . .

Ohio Rev. Code § 2329.08

"Any judgment for money rendered in a court of record in this state upon any indebtedness which is secured . . . by a mortgage . . . on real property . . . upon which real property there has been located a dwelling . . . which has been used in whole or in part as a home . . . or which at any time was held as a homestead by the person who executed or assumed such mortgage . . . shall be unenforceable as to any deficiency . . . after the expiration of two years from the date of the confirmation of any judicial sale of such property completed subsequent to the rendition of such judgment . . ." (emphasis added.)

In non legal talk. . . In Ohio, a lender has two years from completion of a judicial forclosure to go after the borrower for the deficency.

IMHO you are better served by simply maintaining your payments. You will be fine as to selling the property so long as the sales price is sufficient to pay the balance remaining on the mortgage lien. As it relates to a refi you should not be worrying about whether or not your payment history appears on your credit report. Use some other method to reestablish your credit score if you believe such a score is important.

Des.

Anonymous · ‎08-01-2015

@despritfreya wrote:
IMHO it would have been malpractice for your attny to have allowed you to reaffirm. . .

Ohio Rev. Code § 2329.08

"Any judgment for money rendered in a court of record in this state upon any indebtedness which is secured . . . by a mortgage . . . on real property . . . upon which real property there has been located a dwelling . . . which has been used in whole or in part as a home . . . or which at any time was held as a homestead by the person who executed or assumed such mortgage . . . shall be unenforceable as to any deficiency . . . after the expiration of two years from the date of the confirmation of any judicial sale of such property completed subsequent to the rendition of such judgment . . ." (emphasis added.)

In non legal talk. . . In Ohio, a lender has two years from completion of a judicial forclosure to go after the borrower for the deficency.

IMHO you are better served by simply maintaining your payments. You will be fine as to selling the property so long as the sales price is sufficient to pay the balance remaining on the mortgage lien. As it relates to a refi you should not be worrying about whether or not your payment history appears on your credit report. Use some other method to reestablish your credit score if you believe such a score is important.

Des.

I'm assuming this is valid if I were to reaffirm?^^ If I didn't reaffirm, I just pay to stay and sell in the future or if (god forbid) something happens I can walk away with out being responsible for any deficiency....correct?

despritfreya · ‎08-02-2015

@Anonymous wrote:
I'm assuming this is valid if I were to reaffirm?^^ If I didn't reaffirm, I just pay to stay and sell in the future or if (god forbid) something happens I can walk away with out being responsible for any deficiency....correct?

Correct. The discharge means you no longer can be asked to pay $$, however, you will voluntarily continue to service the loan because if you do not, the lender can and will exercise its lien rights (right to foreclose). Should you cease servicing the loan and the lender forecloses, the lender will not be able to assert a monetary claim against you. Had you reaffirmed, the discharge would be irrelevant and upon foreclosure the lender would have two years to sue you for $$$.

Des

ezdriver · ‎08-03-2015

@Anonymous wrote:
I received my BK7 discharge on July 21. I planned to reaffirm my mortgage. After calling my lawyer to be sure my mortgage was reaffirmed, I found out it was not completed in time. My lawyer wants to petition the courts to delay my discharge to complete my reaffirmation agreement. Is this possible since my discharge letter was sent to myself and my mortgage company?

Also, after calling my mortgage company, I was told that they have received my discharge letter and that my reaffirmation has been closed.

What do you mean by that? Did you inform your attorney and did he/she inform the trustee and requested a reaffirmation agreement from the lender? Your attorney has to sign a reaffirmation agreement along with you, the trustee and the lender. Did you sign such an agreement? If not, then one did not exist.

If a discharge was issued without a fully-executed reaffirmation agreement in place, then your attorney is at fault.

ezdriver · ‎08-03-2015

@despritfreya wrote:
IMHO it would have been malpractice for your attny to have allowed you to reaffirm. . .

Ohio Rev. Code § 2329.08

"Any judgment for money rendered in a court of record in this state upon any indebtedness which is secured . . . by a mortgage . . . on real property . . . upon which real property there has been located a dwelling . . . which has been used in whole or in part as a home . . . or which at any time was held as a homestead by the person who executed or assumed such mortgage . . . shall be unenforceable as to any deficiency . . . after the expiration of two years from the date of the confirmation of any judicial sale of such property completed subsequent to the rendition of such judgment . . ." (emphasis added.)

In non legal talk. . . In Ohio, a lender has two years from completion of a judicial forclosure to go after the borrower for the deficency.

IMHO you are better served by simply maintaining your payments. You will be fine as to selling the property so long as the sales price is sufficient to pay the balance remaining on the mortgage lien. As it relates to a refi you should not be worrying about whether or not your payment history appears on your credit report. Use some other method to reestablish your credit score if you believe such a score is important.

Des.

That is one bold statement. The petitioner has a legal right to request reaffirmation of any debt so how can you make such a statement about malpractce? Please explain. I want to learn from you.

despritfreya · ‎08-03-2015

My job is to advise my client and zealously represent him/her. If I believe the choices my client makes are 1) against my advice and 2) not in the client's best interest then I am obligated to withdraw - and I will withdraw.

If I "allow" my client to reaffirm and then the "you know what" hits the fan, my client will sue me for malpractice. Allowing a debtor to reaffirm an obligation when there is no legal requirement to do so and a default under that agreement could cause future financial ruin is malpractice. Please read the entire thread I linked to my original post. Maybe you will then understand how near and dear to my heart this issue is.

Des.